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« More like the media I once knew | Main | Thought on the mass media »

Judge Posner and judicial activism

Posted by David Hardy · 20 February 2011 08:47 PM

Judge Richard Posner comes from the subset of judicial conservativism that isn't necessarily social conservative nor libertarian conservative, but one might say Borkian conservative -- that views avoiding "judicial activism" as a high value. He's long been publishing in opposition to Heller and McDonald, equating them to Roe v. Wade (which in his value system is a strong condemnation).

Josh Blackman has a post criticizing his latest efforts. He does a good job of tearing them apart, but to my mind his writing raise another question.

If "judicial activism" has any meaning beyond "striking down laws that I like," it must be something like "making constitutional decisions based upon the judge's own policy desires." Posner is writing things such as

"There are two important lessons that can be drawn from Becker’s discussion of gun control. The first is that a problem that is not dealt with in its early stages may become insoluble. It is not only the sheer infeasibility of removing 200 million guns from the American population, but also the emergence of a gun culture, that has ended hopes of disarming the population."

I see a judge interpreting a constitutional provision in light of his policy "hopes" as precisely the sort of "judicial activism" that Posner criticizes -- but cannot see in himself. Unless the definition becomes "to strike down a law based on my policy hopes is wrong, but to uphold it on the same basis is right," which seems a bit inconsistent.

· Heller aftermath

5 Comments | Leave a comment

James N. Gibson | February 20, 2011 10:39 PM | Reply

Judge Posner holds the title as the only judge in America so skilled in military matters that if he was in charge of Washington's Army there would have been no casualties only a need for additional arms (his own words). He fully believes that all arms in the time of the founders were kept in locked, state run, armories and people just didn't have firearms at their homes. Thus, with the gun control movement they stand that the "Gun culture" only started after the Civil War. One wonders what he would say when confronted with the four amendments to the 1792 militia Act, the last being in 1821.

Letalis Maximus, Esq. | February 21, 2011 9:00 AM | Reply

As JNG is implying, the American gun culture indeed did not start after the Civil War. The American Rifle Association did not start until after the Civil War, it is true. And it was started because a group of officers and former officers thought that Union soldiers had been poor marksmen. But that is not to say that there were not lots of guns and gun owners in America before the Civil War. Even today, with the so-called gun culture at what Posner believes is it strongest (not sure about that, myself), based on my experience most gun owners are still pretty lousy shots.

And comparing Heller/McDonald to Roe is just silly. The right to keep and bear arms is specifically mentioned in the 2nd Amendment. Roe is based upon a nebulous right to privacy that is found in the so-called penumbra of rights that it took the Court about 20 years to construct, more or less out of whole cloth. Don't get me wrong, having a lot of rights is a good thing. But at least Heller/McDonald is based upon one that is actually in the text, even if you can quibble or disagree about the meaning of that text.

Rich | February 21, 2011 10:36 AM | Reply

Letalis:

The officers found that many people from the Northern cities had no familiarity with firearms while those from the south were much more familiar and deadly. As an outcome of that effort many, if not all, of the NYC high schools during the first 30-40 years of the 1900's had small bore ranges and competitive teams. This was also true of the colleges. For instance City College, (CCNY) had a competitive small bore team till about 1972 when the on campus range was destroyed due to the stadium it was housed in being taken down. Was supposed to be replaced but never was.
Princeton still has a team, but their range was closed when the building it was housed in was razed and no provision has been made to replace it. They practice at an private range. The left has been progressively undoing what the ARA, (later the NRA)did in the late 1800s to the first half of the 1900s.

James N. Gibson | February 21, 2011 12:12 PM | Reply

To be more specific, the Northern States had implemented gun control and even fines for gun ownership before the Civil War and lead the charge to end the 1792 Militia Act in the 1840s. By the time of the Civil War the only Northern States that had extensive gun ownership were the Mid-western States (PA, Ohio, Indiana, Illinois), who during the Civil War felt unduly pressed for recruits since Union recruiters targeted Mid-westerners just because they knew which end of the rifle you put on your shoulder. Yes, then after the war Union generals started the founding of the NRA to promote rifle marksmanship as a result of the poor capability of North eastern recruits. Only then to have New England politicians push the NRA out of New York during the Spanish American war as a peace protest.

Fuz | February 21, 2011 3:25 PM | Reply

I was hoping that you august commenters would spend more words discussing judicial activism rather than the history of the NRA. Am somewhat underwhelmed.

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